FISA Update (And Why Is John Boehner Crying Again?)

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The week starts off with Main Core, Glen Fine’s much anticipated IG Report has been released, today is another state election (Kentucky) in the most hotly, and closely, contested primary that many of us can remember, and, now, the tragic and deflating news that Senator Ted Kennedy has a malignant brain tumor. Oh yeah, and an extended holiday weekend and Congressional recess is at hand in a couple of days. This type of situation can mean only one thing – FISA is bubbling back to the surface. Heck, the only thing missing from this equation is a terror alert; but then again, the week is still young.

First off, where we stand. The news is not all bad, but it sure isn’t all good either. From the National Journal (subscription required-sorry):

House Majority Leader Hoyer had previously said he wanted to reach a compromise on FISA by the Memorial Day recess. GOP and Democratic aides cited several reasons why that has not happened. Late last week, Hoyer sent Senate Republicans a list of provisions that House Democrats want included in a final bill, aides said. Hoyer’s proposal took Senate Republicans by surprise. A Republican aide called the proposal "a step backward."

Before Hoyer’s proposal, Senate Republicans believed that only two main issues needed to be resolved, and that they were close to reaching an agreement on them with House Democrats. One issue dealt with having the secret FISA court determine if the telecom firms should be granted retroactive immunity from lawsuits for their role in the administration’s warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks. The second issue centered on allowing the FISA court to review the administration’s procedures and certifications for surveillance operations. "We’re basically there on those two," an aide said.

But Hoyer’s proposal included other provisions, some of which had already been defeated during votes in the Senate, aides said. One provision, for example, would allow the FISA court to assess if the government is complying with so-called minimization procedures, which limit the amount of information collected and stored on Americans incidental to the surveillance target. Another provision contains language making FISA the exclusive means under which the government can conduct electronic surveillance.

The good news is that it appears that there is little chance that Read more →

Main Core

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I don’t know about the track record of Christopher Ketcham, the author of this Radar piece explaining the "big thing" that that made Jim Comey object to the warrantless wiretapping program so aggressively in March 2004. But it sounds like a plausible explanation.

Ketcham describes a database of Americans who, in case the government ever implements its Continuity of Government program in a time of national emergency, can be rounded up and jailed.

… a number of former government employees and intelligence sources with independent knowledge of domestic surveillance operations claim the program that caused the flap between Comey and the White House was related to a database of Americans who might be considered potential threats in the event of a national emergency. Sources familiar with the program say that the government’s data gathering has been overzealous and probably conducted in violation of federal law and the protection from unreasonable search and seizure guaranteed by the Fourth Amendment.

According to a senior government official who served with high-level security clearances in five administrations, "There exists a database of Americans, who, often for the slightest and most trivial reason, are considered unfriendly, and who, in a time of panic, might be incarcerated. The database can identify and locate perceived ‘enemies of the state’ almost instantaneously." He and other sources tell Radar that the database is sometimes referred to by the code name Main Core. One knowledgeable source claims that 8 million Americans are now listed in Main Core as potentially suspect. In the event of a national emergency, these people could be subject to everything from heightened surveillance and tracking to direct questioning and possibly even detention.

[snip]

Another well-informed source—a former military operative regularly briefed by members of the intelligence community—says this particular program has roots going back at least to the 1980s and was set up with help from the Defense Intelligence Agency. He has been told that the program utilizes software that makes predictive judgments of targets’ behavior and tracks their circle of associations with "social network analysis" and artificial intelligence modeling tools. [my emphasis]

Ketcham goes on to explain that the Bush Administration was cross-referencing Main Core with its warrantless wiretap program. Read more →

Preview: Book Salon on Spies for Hire

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shorrock.jpgI wanted to give you all a heads up to a mid-week book salon I’ll be hosting today at 3PM ET over at the mother ship: Tim Shorrock’s Spies for Hire: The Secret World of Intelligence Outsourcing. I pushed to include Shorrock on the schedule because (as you’ll see in my post at 3) his book offers some key insights on FISA–and we seem to be gearing up for another FISA fight.

But there’s more than FISA that might interest you about the book (and about chatting with Shorrock). He gives the corporate back-story to:

  • Rick Renzi’s corruption
  • The domestic spying Counterintelligence Field Activity (CIFA)
  • CACI, the company whose contractors directed the torture at Abu Ghraib
  • Total Information Awareness
  • The domestic satellite surveillance Chertoff wants to use with DHS

Shorrock wraps that background story in a discussion both of the ideology behind the privatization of our intelligence function:

…as we’ve seen, money and profits are not the sole motivators for the corporations and executives who populate the Intelligence Industrial Complex. Because so many top executives are former intelligence officers themselves, many of their companies are motivated by politics as well. For CACI’s CEO, Jack London, that translates into a desire to "disseminate vital intelligence" for the fight against "Islamofascists." For ManTech CEO George Pederson, it’s a yearning for his company to be "on the battlefield," whether in Iraq, South Korea, or the Philippines. For the senior vice presidents of the big prime contractors, Booz Allen Hamilton and Science Applications International Corporation, it involves power, either as a way to influence future policy or make changes in the way the Intelligence Community is organized.

And a discussion of the subservience of public to private interest in such an Intelligence-Industrial Complex.

In the past, [former NSA Director Kenneth] Minihan said, contractors "used to support military operations; now we participate [in them]. We’re inextricably tied to the success of their operations." This new situation, he argued, presents corporations with "interesting opportunities" to create technologies that governments can take advantage of, "with all the complexities that exist in merging the interests of the private and public sector in the intelligence apparatus."

Merging the interests of the private and public sector. That astonishing phrase, which is now the mantra of the intelligence contracting industry, suggests the creation of a new mode of capitalism that specifically serves theneeds of government and its "intelligence apparatus." Read more →

I Don’t Think “Exclusivity” Means What John Yoo Thinks It Does

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I wanted to focus some attention on one tiny part of the interchange I highlighted yesterday. In the guise of explaining to Administraton apologist David Rivkin the Kafkaesque process by which he has gotten some of the Office of Legal Counsel’s opinions declassified, Sheldon Whitehouse revealed he has been trying to get one more opinion declassified–one relating to exclusivity:

I’d be delighted to show you the whole rest of the opinion [stating that the President tells DOJ how to interpret law] but I’m not allowed to. It’s classified. I had to fight to get these declassified. They made me take … they kept my notes. They then delivered them to the intelligence committee where I could only read them in the secure confines of the intelligence committee and then I had to, again, in a secure fashion, send this language back to be declassified. I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

Exclusivity, you’ll recall, refers to the language in the original FISA bill that requires that FISA be the only means under which the executive branch conducts domestic surveillance. Here’s Anonymous Liberal on exclusivity:

Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)–commonly known as the exclusivity provision–which states that the "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

It is through this provision that Congress made it clear that FISA’s warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework.

Now, as AL points out, the Protect America Act introduced a loophole by which the Administration could get around the exclusivity provision, one DiFi has been trying to ensure stays closed in the amended FISA, and which the Administration hopes to keep open. Read more →

The Commission on Warrantless Wiretapping and FISA Compromise

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Apparently, while I’ve been on my Haggis and Beamish pilgrimage, Steny Hoyer has been busy brokering a compromise on FISA.

House Majority Leader Steny H. Hoyer (D-Md.) said Wednesday a FISA deal is “still in flux” but he described the latest developments as “promising” and said he hoped to have a solution soon.

[snip]

Sen. Kit Bond of Missouri, the top Republican on the Intelligence committee and one of the GOP’s top negotiators on the issue, said he met with Hoyer to discuss the issue on Monday, but did not say a breakthrough had been achieved.

“This is still a ping-pong match,” said Rep Jane Harman (D-Calif.), referring to the back and forth on the bill between the two chambers.

Harman said the latest developments signify "positive movement" on the bill and praised the job Hoyer has been doing on the issue.

Hoyer has been the strongest proponent of a compromise in the Democratic leadership and has worked hard to broker a deal on the issue. He often acts as an intermediary between liberal House Democrats unwilling to grant the telecom companies immunity and conservative Senate Republicans and the White House, both of whom will not accept any FISA bill without immunity.

Now, before I say what I’m about to say, let me reiterate that I believe we should not compromise. The telecoms broke the law when they accepted a letter authorizing the spying on Americans signed by the White House Counsel in lieu of the Attorney General in March 2004, and they should be held accountable for breaking the law.

That said, let me make some points about what basis for compromise Steny might be negotiating, and how such a compromise might be an avenue for transparency about the Administration’s (as distinct from just the telecom’s) lawbreaking with the illegal wiretap program.

Remember that Steny is not just the chief broker currently on FISA. He was also the chief broker on the House bill that passed on March 14. And that bill had one provision that seems to have been forgotten in recent discussions of compromise, but was clearly intended, even in March, to serve as the kernel of any future compromises: the call for a commission to investigate the illegal wiretap program.

Read more →

EFF Bags A Big Win On NSLs

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Our good friends at EFF have a big announcement. They have bagged a big win against the Bush Government on the improper use of National Security Letters.

The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive’s founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library’s work. That’s why Congress passed a law limiting the FBI’s power to issue NSLs to America’s libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it’s never easy standing up to the government — particularly when I was barred from discussing it with anyone — I knew I had to challenge something that was clearly wrong. I’m grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."
…
The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive’s Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI’s misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."

You can read the entire press release here. When they say "there is nothing to stop the FBI from abusing its NSL power" that is not quite right; there is something, and it is the invaluable work of the EFF and ACLU. Make no mistake Read more →

FISA: The Coming Battle

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As I am minding the store while mom is away tilting kilts, I was party to a group discussion among several notable powers that be in the blogosphere early this afternoon, and the various blogs, all of which you are intimately familiar with, will be rolling out over the next few days somewhat of a battle plan on FISA/immunity. Nothing particularly new or shocking really, just a reminder to folks of the stakes involved and where the pressure points are that we need to address.

I wish I could say that there is some new brilliant, sexy and effective tact that we have lit upon to wipe this all away; but that, alas, is not the case. It will be back to the grindstone of calling, faxing and otherwise communicating with the key representatives etc. One thing I think will be critical is to offer plenty of carrots, with gentle reminders of the sticks. As you will recall, we got a surprisingly good response, and result, from the House Democrats in the last go round. We want to build, grow and reinforce that effort and result. The gathering proximity of the election is a double edged sword however. It is a chance for us to remind them of how favorably we view the last effort, but it is clearly also another opportunity for the Bushies to roll out the fear/security card and threaten the weak, and weakly situated, elements (read mostly Blue Dogs) of the Democratic coalition. It is going to be critical for those of us that actually live in districts represented by one of these souls to work them hard.

I have some things that will divide most of my attention for a few hours; although I will check in periodically as I can. In the meantime, use this space to discuss anything you feel important, but please start putting all the collective talent together to suggest ways and means for fighting the next stage of the FISA battle. My post from yesterday morning pretty much gives the lay of the land as it is understood at this moment; there are no real new baseline facts since then. Thanks.

The Uncounted Wiretaps

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McJoan has an important post on BushCo’s coordination with the telecoms to push Congress into passing an immunity bill. There’s a Guinness with my name on it in the pub downstairs, so I’ll just tell you go read McJoan (and, of course, bmaz’ earlier post from today). But I wanted to make one point about this paragraph from the Isikoff article she links:

The debate over a new surveillance authorization is likely to be complicated by figures showing sharp increases in the government’s electronic eavesdropping on U.S. citizens. One report filed with the office of the administrator of the U.S. Courts shows that standard wiretaps approved by federal and state courts jumped 20 percent last year, from 1,839 in 2006 to 2,208 in 2007. Later this week another report is expected to also show increases in secret wiretaps and break-ins approved by the Foreign Intelligence Surveillance Court (FISC) in terror and espionage cases. But even these secret wiretaps and break-ins—estimated to be about 2,300—tell only part of the story. They don’t include other secret methods the government uses to collect personal information on U.S. citizens.

Newsweek cites a big bump in numbers for 2007–a bump which, Hosenball and Isikoff claim–reflect a real increase in actual surveillance.

But we don’t know that.

After all, for 11 and a half months of 2007, the formerly illegal, uncounted warrantless wiretapping was put under review by the FISA Court. So we should expect the numbers to go up significantly, because they will reflect the Administration counting wiretaps that, because they had previously escaped all review, had previously not been counted. We may or may not be seeing an increase in wiretaps. Rather, we may simply be seeing an increase in the number of wiretaps that get counted.

One more point, and then it’s beer thirty.

Remember that part of the hysterics the Administration used to push through PAA in August was to claim that they had lost the ability to wiretap. McConnell told Congress they had lost significant capabilities because FISC was actually reviewing these wiretaps.

If that’s true, then why are the numbers so high? 

Jello Jay And Hoyer Slither Back Into The FISA Limelight

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Crikey, this is getting old. You may have seen by now that rumors of a new push on passage of FISA, and, of course, full retroactive immunity, are bubbling to the surface in the last 24 hours. Here is Jane. Here is Digby. Here is McJoan. From Jane at FDL:

According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.

A few more facts and circumstances are available now than were in the earlier stories. For one, we apparently see the "urgency lever" being pressed this time around (there always seems to be one in these plays, it’s a feature). From Alexander Bolton at The Hill:

The topic has reached a critical point because surveillance orders granted by the director of national intelligence and the attorney general under the authority of the Protect America Act begin to expire in August.

If Congress does not approve an overhaul of the Foreign Intelligence Surveillance Act (FISA) by Memorial Day, intelligence community officials will have to prepare dozens of individual surveillance warrants, a cumbersome alternative to the broader wiretapping authority granted by the Protect America Act, say congressional officials familiar with the issue.

Maybe, but if so, then the situation is intentionally so from a designated plan by the Administration to have some of their programs start running out while they are still in office and can use the "urgency" to fuel their desperate push for immunity. The reason, if you will recall, is the little provision placed in the Protect America Act (PAA) allowing any surveillance order (i.e entire general program, not just individual warrants) existing at the sunset of the PAA, which occurred on February 17, 2008, to continue until expiration, which means that there was NO necessity that any program that the government wished to pursue expire anytime during the current Administration. I have reminded folks of this repeatedly, but here is a wonderful synopsis from Cindy Cohn of EFF:

The PAA provides that any currently ongoing surveillance continues until the "date of expiration of such order," even if PAA expires. "Orders" are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there’s no court involved). These surveillance orders can be Read more →

Article I v. State Secrets

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Well, if nothing else, this al-Haramain case in CA looks like it’ll focus the issue of States Secrets just as the Senate attempts to curb it.

An Islamic charity group is challenging the Bush administration’s record use of the so-called state secrets privilege, dubbed a "killer bullet" to the group’s case over warrantless wiretapping.

Lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation on Wednesday urged a federal judge to toss out the government’s use of the privilege and let their lawsuit proceed.

The SF Chronicle captures the government argument in all its Kafkaesque glory.

A Bush administration lawyer resisted a San Francisco federal judge’s attempts Wednesday to get him to say whether Congress can limit the president’s wiretap authority in terrorism and espionage cases, calling the question simplistic.

"You can’t possibly make that judgment on the public record" without knowing the still-secret details of the electronic surveillance program that President Bush approved in 2001, Justice Department attorney Anthony Coppolino said at a crucial hearing in a wiretapping lawsuit.

[snip]

But Walker, in an extensive exchange with Coppolino, said Congress had spoken clearly in a 1978 law that required the government to obtain a warrant from a secret court before it could conduct electronic surveillance of suspected foreign terrorists or spies.

"The president is obliged to follow what Congress has mandated," Walker said.

Coppolino replied that Congress has also authorized the president to protect the nation and its military secrets.

[snip]

Walker pressed him on a more basic issue: whether Congress acted constitutionally when it required court approval for such wiretaps in the 1978 Foreign Intelligence Surveillance Act.

"I think it’s a bit of a simplistic question," Coppolino said.

"One might call it a fundamental question," the judge replied.

The government lawyer said that Congress "sought to intrude on the president’s authority to authorize surveillance" when it enacted the law, and that Bush, acting under his constitutional powers, had determined that its provisions were not sufficient to allow law enforcement authorities to thwart terrorists’ attack plans.

But Coppolino said the constitutionality of the law, and the related question of whether it is binding on the president, can’t be resolved without delving into operational details whose exposure would damage national security.

It looks like Coppolino’s argument will be worth reviewing in detail–to either laugh … or cry. Read more →